Mkonde Haji Mwadini vs Pomboo Company Limited (Civil Application No. 26 of 2025) [2026] TZCA 267 (6 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 26 OF 2025 MKONDE HAJI MWADINI...................................................................... APPLICANT VERSUS POMBOO COMPANY LIMITED ............................................................. RESPONDENT (Application for stay of execution of the judgment and decree of the High Court of Zanzibar) (Ibrahim, J.^ dated the 19th day of August, 2025 in Civil Appeal No. 36 of 2023 RULING 2nd March, 2026 MGONYA. J.A.: The instant application emanated from Civil Appeal No. 36 of 2023, (Ibrahim M. Ibrahim, J.) before the High Court of Zanzibar, dated 19th August 2025. It is deponed by the applicant in its affidavit in support of the application that, the applicant was a respondent in the Land Tribunal at Koani Zanzibar in Land Petition No. 13 of 2021. Further, after the hearing and determination of the said case, the respondent in this application was not satisfied with the decision of the Tribunal and decided to file an appeal to the High Court of Zanzibar against the said decision. The said appeal was heard and determined in favor of the respondent in this application.

That soon after the judgment was delivered, the applicant's advocate filed a Notice of Appeal and applied for relevant documents for the appeal purpose. On the other side, in a bid to enjoy the fruit of the decree, the respondent filed an application for execution of the decree No. 7 of 2025 on the 19th of September, 2025, before the High Court of Zanzibar and served the applicant with the requisite documents for execution on the 12th of December. It is the said application which triggered the instant application where the applicant seeks for an order of the Court to stay the said execution, pending hearing and determination of the appeal. The application has been preferred through a notice of motion supported by an affidavit affirmed by Mkonde Haji Mwadini, the applicant herein. At the hearing of the application, the applicant was represented by Ms. Zulekha A. Khamis, learned counsel while the respondent was represented by Mr. Daudi Issack Kidyalla learned counsel. At the outset, Mr. Kidyalla informed the Court that the respondent is not contesting the application, save for the security as the law requires. Responding to the security, Ms. Khamis referred the Court to paragraph 16 of the supporting affidavit, stating that the applicant is ready to furnish the security in due cause of the performance of the decree. Further, the learned counsel noted that, the same is a prerogative of the Court; that what form of security is to be provided, is neither the choice of the applicant nor the respondent but of 2

the Court. She thus left the matter of security to the court's discretion. Finally, the learned counsel prayed that the Court be pleased to grant an order sought as prayed. On my part, having carefully gone through the notice of motion and the supporting affidavit to the application, I have no hesitation to point out that the uncontested application has complied with the provision of rule 11 (4) of the Tanzania Court of Appeal Rules, 2009 (the Rules). It is on record that, the application was filed within the statutory time. Equally, it is undoubted that, the applicant acted in accordance with rule 11(7) of the Rules, as she attached all the relevant documents. Therefore, the pertinent issue for determination is whether the applicant have cumulatively complied with requirements stipulated under rule 11 (5) (a) and (b) of the Rules. In a number of its decisions, the Court established that, in order for an application for stay of execution to succeed, all conditions stated under rule 11(5) (a) and (b) of the Rules must be cumulatively fulfilled. See For instance- David Mahende v. Salum Nassor Mattar & Another (Civil Application No. 160/17 of 2017) [2018] TZCA 459 (6 June 2018), Mohamed Enterprises T. Ltd v. Mussa Shaban Chekechea (Civil Application No. 394 of 2019) [2019] TZCA 449 (24 October 2019) and Pristine Properties Limited & Others v. 3

ECO Bank Tanzania Limited (Civil Application No. 580 of 2021) [2023] TZCA 17267 (22 May 2023). In regard to the issue of substantial loss, the applicant has deponed under paragraphs 11 and 12 of the supporting affidavit that, substantial loss may result in the event the Court does not intervene by issuing an order of stay of execution. That the execution will affect the applicant's business, which will suffer economically, and further render the intended appeal nugatory. Considering the applicant's assertions as paraphrased above, I am satisfied, and I entertain no doubt that, in view of the nature of the mode of execution sought by the respondent, the applicant is likely to suffer substantial loss if an order for stay of execution is denied. Henceforth, I hold that the first condition for the grant of an order for stay of execution has been met by the applicant. In regard to security, it is the applicant's averment in paragraph 16 of the affidavit in support of the application that, the applicant is willing to provide sufficient security for the due performance of the decree. As the matter before the Court is about a landed property, I am guided with the decision of the Court in Lesusu Lesilale Saiduraki v. Sanai Lekimboyipoi (Civil Application No. 85/02 of 2021) [2023] TZCA 17529 (23 August 2023) where it was stated that: "We have considered the mode o f execution sought by the respondent, namely, forceful eviction o f the 4

applicant from the disputed land. That means, if an order for stay is not granted, and assuming that the applicant subsequently succeeds in the intended appeal, he and members o f his expansive extended family currently occupying the disputed land stand to suffer substantial loss which cannot be atoned by way o f damages". It is from the above excerpt that I find the applicant's willingness to furnish sufficient security constitutes compliance with the requirement of rule ll(5)(b) of the Rules. Being guided by the position in the above case, I have no hesitation to find that the explanations made by the applicant that if the execution proceeds, the applicant will suffer substantial loss which may not be atoned for by damages convincing. Further, taking into account that the disputed property is a landed property and not pegged in monetary terms, I take the same property to be sufficient security under the circumstances. Therefore, as pointed above under paragraph 16 of the supporting affidavit, the applicant is willing to furnish security as may be ordered by the Court, signing the bond in respect of the said land, serves the commitment. In the event therefore, I am satisfied that, the applicant has met all conditions precedent for the grant of an order for stay of execution.

In the event and for the foregoing reasons, I find the uncontested application meritorious and grant it. Consequently, I make an order to stay the execution of the decree of the High Court in the Execution Cause No. 7 of 2025 before the High Court of Zanzibar, in respect of Civil Appeal No. 36 of 2023, pending the hearing and determination of the intended appeal before this Court. Further, the applicant is ordered to execute within thirty days from the date of delivery of this ruling, a written bond undertaking to vacate from the suit property as ordered by the High Court in case the appeal is not decided in his favour. I further order that costs shall abide the outcome of the intended appeal. DATED at DAR ES SALAAM this 6th day of March, 2026. Ruling delivered this 6th day of March, 2026 in the presence of Ms. Zulekha A. Khamis, leaned counsel for the Applicant, Mr. Daudi Isaack Kidyalla, learned counsel for the Respondent, via- Teleconference and Ms. Nise Mwasalemba, L. E. MGONYA JUSTICE OF APPEAL Court y of the original. J. 1 KAMALA DEPUTY REGISTRAR COURT OF APPEAL